Mr. Rajesh Bindal, J.: - Defendant no. 1 has filed the present petition impugning the order dated 5.2.2015 (Annexure P-1) passed by the learned Court below whereby the application filed by him for permitting him to sign the written statement already filed and also to file affidavit in support of that, was declined.

2. Learned counsel for the petitioner submitted that in the suit for specific performance of the agreement to sell dated 11.4.2005 filed by respondent no. 1/plaintiff on 21.4.2006, the petitioner appeared on 5.11.2007. Subsequent thereto, the written statement was filed, which inadvertently was signed only by the counsel and not by the petitioner/ defendant. The error was not noticed even by the plaintiff. It was not pointed out by counsel for respondent no. 1/ plaintiff at the time of filing replication or at any stage of proceedings. The plaintiff led his entire evidence. The witnesses produced by him were even cross-examined by the petitioner/ defendant. However, no objection was raised. It is when defendant no. 1 was to start his evidence that it was noticed that the written statement already filed had not been signed by the petitioner/ defendant. The error having been noticed, the application seeking permission to sign the written statement already filed to rectify the defect was filed, which has been wrongly declined by the learned court below. While referring to judgments of Hon’ble the Supreme Court in Kailash vs Nanhku and others 2005 (2) R.C.R.(Civil) 379, Uday Shankar Triyar vs Ram Kalewar Prasad Singh and another 2006 (1) R.C.R. (Civil) 18, and judgments of this Court in Smt. Mukhtiar Kaur vs Smt. Ghulab Kaur AIR 1977 Punjab & Haryana 257 and Harbhajan Singh vs Mohan Singh 1992(2) PLR 482, he further submitted that the error being procedural, the same can be cured at any stage as the same is not fatal.

3. On the other hand, learned counsel for respondent no. 1/ plaintiff submitted that though after service the petitioner/ defendant appeared on 5.11.2007 but did not file his power of attorney. The written statement was not signed by him. It was pointed out later on. As there was no power of attorney on record filed by counsel for defendant no. 1, he was directed to be proceeded ex-parte on 24.3.2014. The application for setting aside the ex-parte proceedings was filed on 26.3.2014. On 9.4.2014, it was pointed out by counsel for the plaintiff that the written statement filed by the petitioner had not been signed by him. No steps were taken to correct the error, if any. The order directing ex-parte proceedings against the petitioner was set aside on 18.5.2014. Even thereafter, the steps were not taken to file a signed written statement. The application for the purpose was filed on 21.1.2015. The same was highly belated. Due diligence was not proved. In fact the object of the petitioner was only to delay the proceedings, in which he was successful. The suit was filed by respondent no. 1/ plaintiff way back in the year 2006, which is still at the evidence stage.

4. Learned counsel referred to the exceptions laid down by Hon’ble the Supreme Court in Uday Shankar Triyar’s case (supra) wherein it has been observed that the defendants cannot be permitted to sign written statement in case the procedural defect is not rectified when it was pointed out and due opportunity was afforded for the purpose. The case in hand is the same. Hence, there is no error in the order passed by the learned Court below.

5. Heard learned counsel for the parties and perused the paper book.

6. The facts as have been placed before this Court are that after service, the petitioner/ defendant no. 1 appeared. The written statement already filed by him was not signed by him but was signed by his counsel only, is not in dispute. There was no objection raised by the plaintiff at any stage as the entire evidence of the plaintiff was concluded. The witnesses produced by him were even cross-examined by the petitioner/ defendant no. 1. As